As long as anyone is not free, then nobody is really free.To guarantee your own rights you must guard the rights of all.

Wednesday, May 14, 2008

Proper Standing

Accountability really is the biggest problem with any government. Some may say that in a despotic government other problems are bigger, but it is the lack of accountability that enables a government to grow to the levels necessary to become abusive.

The original design of the federal system of the United States had several checks put in place to assist in keeping the government accountable. In theory the branches of the government compete with each other, and the individual states jealously guard their power. In practice the various levels of government have learned game theory and have solved the prisoner’s dilemma and all branches play cooperate more often than they play defect.

If breaking the civil-criminal wall were implemented, there are still several defenses the state has.

One major problem with this is the problem of standing. One can only file a lawsuit in any given case if one has been an injured party. An outside observer, witnessing a crime, cannot file charges against the criminal. The victim, directly involved in the crime, can file civil charges against the criminal. The government is the only third party actor with standing to file any charges. The government, not directly involved in the crime, can file criminal charges against the criminal.

Another problem is the Nuremberg Defense. While that defense is not allowed by agents of a conquered government in courts of the conquering government, it has been shown to be effective when the court trying the case is of the same government as the defendant.

But the standing issue really is not only a big hurdle, it’s a big opportunity if the law can be adjusted to allow for it. In addition to holding police accountable, an adjustment to the principles of standing can hold the entire government accountable. Currently the only way an individual can challenge the constitutionality of any given law that individual must be on trial for breaking said law or as a victim of said law.

This is the reason why the ACLU has had such a hard time suing over wiretapping performed by the U.S. Government in the name of the “War On Terror.” The ACLU needs to find an actual victim to represent, someone who was actually spied upon unconstitutionally or illegally. That person would have standing and therefore the ACLU could represent them. The problem is the U.S. Government won’t intentionally release the names of who they have been secretly spying on, and therefore the ACLU cannot act. Fortunately for the ACLU they were saved by government incompetence and a partial list of names was released and therefore there were identifiable victims.

If one is not accused of breaking the law in question, or if one is not a victim of the law in question, one does not have standing to question the validity of the law. That needs to be remedied, and would be another check on the power of the government. Given the bromide that “we are the government” then theoretically everyone should be considered to have standing to challenge any law

If anyone could, at any time, file a case (at their own expense) to challenge the validity of the law it would be a legal nightmare. Therefore there will need to be guidelines and restrictions put in place to winnow out the more spurious cases. The guidelines already in place would serve as a good starting point, although they are more restrictive than they need to be. The only modification to the guidelines advocated is to remove the need for proper standing with regards to challenging legislation. This would also have the advantage of cutting through the government solution to the prisoners dilemma.